223 F.3d 41 (2nd Cir.

2000)

UNITED STATES OF AMERICA, Appellee-Cross-Appellant,

v.
WILLIAM GREER, a/k/a Thomas Williams Dodds, and
STEPHEN BRENT HUTCHINS, Defendants-AppellantsCross-Appellees.
Docket Nos. 99-1072(L), 99-1073(CON), 99-1092(XAP)
August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: March 23, 2000
Decided: August 14, 2000

Appeal from judgments of conviction entered following a jury trial in the

United States District Court for the District of Vermont (William K.
Sessions, III, Judge). Greer was convicted of conspiracy to import and
export hashish and marijuana, violations of the Maritime Drug Law
Enforcement Act, and failure to file a currency transaction report, and was
sentenced principally to a term of imprisonment of 324 months. Hutchins
was convicted of conspiracy to import and export hashish and marijuana
and violations of the Maritime Drug Law Enforcement Act, and was
sentenced principally to a term of imprisonment of 276 months. The
government cross-appeals from the sentences imposed.
We affirm the convictions and the denial of a new trial. However, we
vacate the sentences and remand: (1) for clarification of the record with
respect to the manner in which the District Court arrived at the defendants'
sentences; and (2) for resentencing based on the District Court's
misapplication of the Sentencing Guidelines's "relevant conduct" and
"obstruction of justice" provisions.
Affirmed in part, vacated in part, and remanded for resentencing.
[Copyrighted Material Omitted]
DAVID V. KIRBY, Then-Acting United States Attorney for the District
of Vermont (Gary G. Shattuck, Assistant United States Attorney, on the
brief), Burlington, VT, for Appellee-Cross-Appellant.

EDWARD S. ZAS, Federal Defender Division Appeals Bureau, Legal Aid

Society, New York, NY, for Defendant-Appellant-Cross-Appellee
William Greer.
MARK A. KAPLAN, Burlington, VT, for Defendant-Appellant-CrossAppellee Stephen Brent Hutchins.
Before: FEINBERG, JACOBS, and STRAUB, Circuit Judges.
STRAUB, Circuit Judge:
William Greer and Stephen Brent Hutchins appeal from judgments of
conviction entered on January 27, 1999, following a jury trial in the
United States District Court for the District of Vermont (William K.
Sessions, III, Judge). Greer was convicted of conspiracy to import and
export hashish and marijuana, violations of the Maritime Drug Law
Enforcement Act ("MDLEA"), 46 U.S.C. app. 1903, and failure to file a
currency transaction report, and was sentenced principally to a term of
imprisonment of 324 months. Hutchins was convicted of conspiracy to
import and export hashish and marijuana and violations of the MDLEA,
and was sentenced principally to a term of imprisonment of 276 months.
The United States cross-appeals from the sentences imposed.
On appeal, Greer and Hutchins raise several challenges to their
convictions. First, they contend that the District Court committed
reversible error by excluding the parties and counsel from in camera
meetings with prospective jurors to discuss jury service hardship excuses.
Second, they assert that the court further erred by failing to disclose to the
parties and counsel that one prospective juror attempted to discuss issues
unrelated to hardship during his in camera meeting. Third, they argue that
a new trial was required because a juror failed honestly to answer material
questions on voir dire and because that juror and others had been exposed
to extrinsic evidence. Fourth, the defendants contend that the District
Court improperly instructed the jury that a foreign nation's consent to
enforcement of United States law, even if provided after indictment,
satisfies the jurisdictional element of the MDLEA. Fifth, the defendants
assert that the District Court erred by failing to state its reasons for
imposing their sentences at a particular point within a United States
Sentencing Guidelines ("U.S.S.G.") range that exceeded 24 months, as
required by 18 U.S.C. 3553(c)(1). Finally, Hutchins argues that his
$500,000 fine was clearly erroneous.
In its cross-appeal, the government challenges the sentences imposed by
the District Court on three grounds. First, the government contends that

the District Court erred in excluding from defendants' relevant conduct,

under U.S.S.G. 1B1.3, a quantity of drugs that was part of the
defendants' offense but that was not intended for distribution in the United
States and had already been the subject of foreign prosecution. Second,
the government argues that the District Court erroneously found the
defendants to be only managers or supervisors rather than leaders or
organizers of criminal activity pursuant to U.S.S.G. 3B1.1. Finally, the
government asserts that the District Court erred in refusing to impose a
sentencing enhancement for obstruction of justice pursuant to U.S.S.G.
3C1.1.
As explained below, we conclude that the District Court did not err by
excluding the parties and counsel from in camera meetings with
prospective jurors to discuss jury service hardship excuses and by not
disclosing particular remarks made by one prospective juror during such
an in camera meeting. We further hold that the District Court did not
exceed its allowable discretion in denying defendants' motion for a new
trial.
Next, we conclude that the District Court properly instructed the jury that
a foreign nation's consent to enforcement of United States law provided
any time before trial satisfies the jurisdictional element of the MDLEA.
We also hold that the fine imposed on Hutchins was not clearly erroneous
and that the District Court did not err in concluding that the defendants
were only managers or supervisors rather than leaders or organizers of
criminal activity.
We find, however, that because the District Court's sentencing remarks
are ambiguous, we are unable to determine from the record whether the
court was required to state its reasons for the defendants' sentences under
18 U.S.C. 3553(c). We thus remand for clarification. We also hold that
the District Court erred by excluding from relevant conduct a quantity of
drugs that was part of the defendants' offense and by applying the wrong
standard in evaluating statements under the U.S.S.G.'s obstruction of
justice provision. We thus remand for resentencing.

Accordingly, we affirm in part, vacate in part, and remand for clarification of

the record and for resentencing.

BACKGROUND
2

This appeal arises out of an international drug smuggling and distribution

conspiracy that spanned several decades and included the shipment of tons of
hashish and marijuana to North America. The defendants, William Greer and
Stephen Brent Hutchins, were prosecuted and convicted for their participation
in that conspiracy. We recount only the events and circumstances that bear
upon the parties' claims and that provide essential context.
3

The evidence presented at trial, taken in the light most favorable to the
government, showed the following. The conspiracy was organized and headed
by Dutch and Canadian organizations, which shared in the profits and directed
the operations. Greer and Hutchins were hired to assist in the smuggling
ventures. From 1980 to 1993, Greer and Hutchins conspired to import and
export thousands of pounds of hashish and marijuana across the VermontCanada border. The defendants, and associates whom they oversaw, transported
drugs using backpacks, snowmobiles, boats, all-terrain vehicles, and airplanes.
From 1989 to 1991, the defendants also participated in or planned the offloads
of many tons of hashish from vessels in the St. Lawrence River into Canada
and the United States. In 1991, one such offload attempt went awry-barrels of
hashish were discovered floating in the St. Lawrence River after bad weather
and an equipment malfunction foiled the smugglers' efforts-and the defendants
were eventually arrested. Greer and Hutchins were prosecuted in Canada for
drug offenses in connection with the failed offload.

In July 1996, a nine-count Superseding Indictment was filed against Greer and
Hutchins in the United States, and the defendants went to trial in the District of
Vermont in early 1997. At the close of trial, Greer and Hutchins were each
convicted of one count of conspiring to import and export a controlled
substance in violation of 21 U.S.C. 952, 953, 960, and 963, and one count of
conspiring to distribute and possess with intent to distribute hashish on board a
vessel subject to the jurisdiction of the United States, in violation of the
MDLEA, 46 U.S.C. app. 1903. Greer was also convicted of one count of
failing to report the international transportation of currency in violation of 31
U.S.C. 5316(a)(1)(A) and 5322(b). The jury acquitted the defendants of the
remaining counts, which are not relevant to this appeal. The District Court
sentenced Greer to 324 months' imprisonment and Hutchins to 276 months'
imprisonment. They timely filed notices of appeal.

DISCUSSION
I. The Jury Issues
5

Prior to jury selection, each venire person completed a jury questionnaire,

which asked, inter alia, whether the potential juror, a relative, or a person close

to that juror had ever been a victim of a crime, a witness to a crime, or accused
of a crime. Prospective juror John Baker answered "no" to this question.
6

Then, prior to announcing the case to the jury panel, the District Court
described the possible length of the trial and permitted those jurors with
extraordinary personal circumstances and potential scheduling conflicts to
address those issues individually in chambers. Neither the parties nor counsel
were permitted to participate or observe. According to the court, this was
standard procedure.

Defense counsel objected to their exclusion from the meetings. The court
responded, however, that the purpose of the meetings was solely to discuss
requests for excusal unrelated to the prospective jurors' knowledge of the case.
Defense counsel asked what the court would do if a prospective juror
mentioned something about the case. The court responded, "[T]hat is not to be
addressed at all. That person is to be sent back, and that will be addressed with
lawyers. I'm not going to say anything about this case." The court also noted
that a court reporter would be present, though the reporter would likely not
have a transcript of the meetings prepared before jury selection.

The court then met with approximately 30 jurors individually in chambers. The
following colloquy took place between the court and juror John Baker:

BAKER: Your Honor, good afternoon. When you extended the invitation to
meet with you privately, I was under the impression that it would have been
privately. What I wanted to discuss with you is critical.

10

THE COURT: What-to excuse you as a juror?

11

BAKER: I wasn't asking for an excusal.

12

THE COURT: Oh.

13

BAKER: But what I have to say is critical.

14

THE COURT: There is a record that has to be kept of any communication.

15

BAKER: I can repeat it later.

16

THE COURT: Yes.

16
17

BAKER: I have no problem with that. I want your opinion of something.

18

THE COURT: Well, why don't you just tell me the general subject matter of
the -

19

BAKER: Well, I can't ask you what trial, what case, and I understand that, but I
can tell you probably what the case is.

20

THE COURT: Well, this-the purpose of this hearing, though, is just to get into
discussion about whether people have personal problems with the six weeks to
two months [length of the trial].

21

BAKER: No. I have no problem and I am not trying to get out of the trial.

22

THE COURT: All right.

23

BAKER: I am just-I wanted to be afforded an opportunity to talk to you in

private, to assure myself that I'm not wasting my time, I am not wasting your
time, going through the selection process, and then something comes out during
trial that maybe I shouldn't have been a juror.

24

THE COURT: Okay. Well, let's take this step by step. If you have got no
problems with the period of time, let's have you come back at one o'clock and
see if you are selected in the 35 jurors in the box there, and if you are, you will
know-the nature of the case will be disclosed to you, and if you have any
particular issues to resolve at that particular point, then we will take that step by
step and you can bring that out.

25

BAKER: Fair enough.

26

THE COURT: All right?

27

BAKER: Thank you, sir.

28

THE COURT: Great. Thanks.

29

After the in camera discussions, the court informed counsel that during the
interviews "nobody spoke about the case at all."

30

At voir dire, Baker was the first juror questioned. The court asked the jurors,

30

At voir dire, Baker was the first juror questioned. The court asked the jurors,
beginning with Baker, to name "the sources from which [they] have some
exposure to the facts of this case." The court explained that it wished to make
sure that if a juror had "been exposed to some knowledge about this case,
whether it's correct or incorrect, that that would not affect [his or her] judgment
in any way."

31

Baker responded that he had heard about the case through a newspaper called
the "Free Press." The court asked, "[I]s that strictly from the Free Press?";
Baker said yes. The court then asked Baker if he could nonetheless decide the
case based only on the evidence elicited in court; Baker said yes. After
questioning all the prospective jurors, the court again asked whether anyone
"has been exposed to any kind of publicity or in fact has talked about this case
with anyone else at all, who has not addressed that already[.]" No juror
responded.

32

Later during voir dire, Baker raised some concerns about possibly knowing
several potential witnesses. Baker also noted, in response to the court's question
about whether any prospective juror had prior experience with law
enforcement, that as part of his National Guard duty he had searched vehicles at
the Canadian border. Baker assured the court that he could remain impartial,
however, and he was not dismissed.

33

The court also asked the jurors: "Have you had any experience involving
yourself, any members of your family, or any close friend that relates to the use
or possession of illegal drugs or narcotics, within the past 10 years?" Juror
Baker did not respond. Upon returning to court the next day, however, Baker
said that he had recalled that his best friend had died as a result of drug and
alcohol abuse.

34

After some members of the panel had been dismissed, the court seated and
questioned new potential jurors. In the presence of juror Baker, one new
prospective juror informed the court that he had been asked by a co-worker
who knew one of the defendants to lend a "sympathetic ear" to the defendants.
The court asked the juror if this incident would make it uncomfortable for him
to sit on the jury and whether the co-worker imparted any facts of the case to
him. The juror answered no, and the court moved on. The juror was not
challenged for cause, but ultimately was not needed on the jury because all the
seats were filled. Baker was selected as a juror.

35

As part of its case during trial, the government attempted to establish a pattern
of drug distribution by Greer dating back to 1980. One witness who testified in

this regard, Michael Johnson, described situations in which Greer distributed

drugs to others. Johnson testified that Greer distributed drugs to a Robert Baker.
Robert Baker's name came up more than once during Johnson's testimony.
36

Although juror John Baker did not reveal his relationship to Robert Baker
during the trial, John Baker informed a news reporter after the trial that Robert
Baker was his brother. The court then held a full evidentiary hearing to address
this issue. At the post-trial hearing, John Baker testified that he was "surprised"
to hear his brother's name during trial. He did not bring the relationship to the
court's attention, however, because "it didn't have any impact" on him and
because he believed that the relationship would not prevent him from being
impartial. Baker testified that he mentioned his relationship with Robert Baker
to at least two jurors, though he did not tell any juror that his brother was a drug
user or purchaser. Baker also testified that he did not state during voir dire that
his brother was involved with drugs because he did not know of any such
involvement within the past ten years. The court then asked Baker if his
relationship with his brother impacted his ability to be fair and impartial; Baker
said no.

37

Baker acknowledged that his response on the jury questionnaire that no relative
had been accused of a crime was inaccurate because his brother Robert had
been convicted of a crime. Robert Baker had been incarcerated in 1969 and was
jailed at least once after that. John Baker said that he did not reveal this on the
jury questionnaire because he "didn't even give it a thought." According to
John, he and Robert did not regularly associate with one another. John
acknowledged, however, that he and Robert attended a family function during
the trial.

38

Baker then testified that when he met with the court in camera prior to jury
selection and said that he "probably" knew what the case was, he was referring
to the case against Greer. The "critical" information he wanted to disclose was
that prior to jury selection he had been contacted1 by an old acquaintance who
knew that Baker might serve as a juror for Greer's prosecution. The
acquaintance said that Greer had not sent him, but that he was a "close friend"
of Greer and wanted to make sure that there would be a "sympathetic ear" on
the jury. Baker interpreted this contact as a bribe attempt. He responded that the
contact was "inappropriate" and the offer "illegal." He then told the individual
that he "ought [to] kick his ass for even suggesting [a bribe], if that's what he
was suggesting."

39

According to Baker, he did not notify the court of the contact after the in
camera meeting because, again, he believed that it would not affect his ability

to be impartial. Moreover, after having seen that another juror was not
immediately dismissed upon revealing a similar outside contact, Baker figured
that "that solved [his] problem." The court asked Baker if the outside contact
had "any bearing on [his] ability to be fair and impartial[.]" Baker responded,
"Obviously not."
40

The court also interviewed the other jurors to determine whether they had been
exposed to extrinsic evidence and to assess their ability to be fair and impartial.
Five jurors recalled hearing John Baker mention his relationship to Robert
Baker, and five jurors recalled that he described his contact from an outside
source. One juror testified that John Baker told some jurors that Michael
Johnson's testimony "should be thrown out." Another juror testified that John
Baker announced before many jurors that his brother Robert was involved in
drug transactions with Greer. According to this juror's testimony, Baker told the
jurors that "Robert Baker was his brother, and that he was involved in drugs,
that he was in and out of jail most of his life, and that he had dealt with Bill
Greer." Baker, according to this juror, also told the jurors that the court was
aware of the situation and had advised him that it "would cross that bridge
when [it] came to it." The District Court, however, found this juror's testimony
"not . . . persuasive."

41

None of the other jurors reported hearing John Baker's statements about
Robert's drug transactions with Greer, and six jurors said that they had not even
heard that John and Robert Baker were brothers. All twelve jurors affirmed that
nothing they heard had an impact on their ability to render a fair and impartial
verdict.

42

The District Court denied the defendants' motion for a new trial. The court
found that the defendants had failed to satisfy either prong of the two-part test
for a new trial based on juror misconduct set forth in McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).

43

First, the court ruled that juror Baker did not fail to answer honestly a material
question at voir dire, because Baker's incorrect answers were not made for an
"illegitimate purpose" or with a "malicious design." The court found that juror
Baker's omissions or misstatements were either inadvertent or based on his
belief that he could be impartial. Addressing the second prong of the
McDonough test, the court found that correct answers to the voir dire questions
would not have supported a challenge for cause. It found that Baker's ability to
remain impartial was not affected by either the outside contact or his
relationship with his brother.

44

The court also found that a hypothetical, average juror would not have been
prejudiced by the extrinsic evidence brought in by Baker.

45

The defendants advance several challenges to the selection and conduct of the
jury. We address those challenges in turn.

46

A. In Camera Questioning of Prospective Jurors for Hardship Excuses

47

The defendants assert that the District Court committed reversible error by
excluding the parties and counsel from in camera meetings with the venire
members relating to jury service hardship excuses. We disagree.

48

Federal Rule of Criminal Procedure 43(a) provides that a criminal defendant

shall be present "at every stage of the trial including the impaneling of the
jury." Fed. R. Crim. P. 43(a); see also Rogers v. United States, 422 U.S. 35, 3839 (1975) (criminal defendant has a right to be present from the time the jury is
impaneled until its discharge after rendering the verdict); Lewis v. United
States, 146 U.S. 370, 374 (1892) ("[T]he trial commences at least from the time
when the work of empanelling the jury begins.").

49

We have held, however, that routine administrative procedures relating to jury

selection are not part of the true jury impanelment process in which parties and
counsel have a right to participate. In United States v. Woodner, 317 F.2d 649,
651 (2d Cir.), cert. denied, 375 U.S. 903 (1963), we affirmed a conviction after
the district court questioned potential jurors about hardship excuses at the
bench in sight of, but outside the hearing of, the parties and counsel. The
district court in that case also met with two jurors privately in chambers without
a court reporter present to further discuss the jurors' hardship reasons. We
"fail[ed] to see the remotest possibility of prejudicial error in [that] procedure,"
and refused "to presume that prejudice resulted in the absence of some plain
showing to that effect." Id. at 651-52. Rather, we emphasized our "confidence
in the integrity and fairness of the District Judges to assume that they will not
make unfair remarks to jurors while undertaking administrative duties of this
nature." Id. at 652.

50

Since Woodner, we have reaffirmed that hardship questioning is not a part of

voir dire-and thus not a critical stage of the trial during which the parties and
counsel must be present. In United States v. Williams, 927 F.2d 95 (2d Cir.),
cert. denied, 502 U.S. 911 (1991), the defendant challenged the practice of the
jury clerk, rather than the trial judge, excusing certain venire members on
hardship grounds. We upheld the constitutionality of that practice,

distinguishing such an "'administrative impanelment process'" from voir dire.

Id. at 97 (quoting Gomez v. United States, 490 U.S. 858, 874 (1989)
(distinguishing voir dire, which represents jurors' "first introduction to the
substantive factual and legal issues in a case," from the "administrative
empanelment process")).
51

Similarly, in Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998), we
labeled the in camera questioning of jurors to eliminate those who had been
prejudiced by pretrial publicity "tedious, routine screening." See also United
States v. Candelaria-Silva, 166 F.3d 19, 31 (1st Cir. 1999) ("If a judge does no
more than what a jury clerk is authorized to do in excusing jurors, that may
raise an issue of allocation of court resources but does not raise an issue of
impropriety."), cert. denied, 120 S. Ct. 1559 (2000); United States v. Calaway,
524 F.2d 609, 615-16 (9th Cir. 1975) (affirming conviction after trial court
questioned jurors about hardships in camera without parties, counsel, or
reporter present), cert. denied, 424 U.S. 967 (1976).

52

The defendants' reliance on United States v. Bordallo, 857 F.2d 519 (9th Cir.
1988), cert. denied, 493 U.S. 818 (1989), is misplaced. In Bordallo, the Ninth
Circuit concluded that either the defendant or his counsel should have been
present when the district court excused prospective jurors. See id. at 523. In
Bordallo, however, it was clear that "the prospective jurors knew which
specific case they would hear, and some were excused due to factors related to
[the defendant's] particular cause." Id. This, the Ninth Circuit held, made the
situation more analogous to voir dire than to mere administrative impanelment.
See id.

53

Here, the District Court questioned the prospective jurors prior to announcing
the case. As was made clear to the parties, the process employed by the court
was standard in Vermont. Accordingly, at least to the extent that the District
Court addressed routine administrative matters with the jurors, we fail to see
any error in its exclusion of the parties and counsel.

54

B. Failure to Take Action After Juror Revealed Information

55

The defendants argue next that the District Court committed reversible error by
taking no action in response to juror Baker's in camera remarks. We disagree.

56

"The process of empaneling a jury is firmly entrusted to the sound discretion of

the trial judge and will not be disturbed absent an abuse of this discretion."
United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994). To be sure, a judge who

receives important information from a juror should promptly convey that

information to the parties and counsel. See United States v. Aiello, 771 F.2d
621, 629 (2d Cir. 1985) (a judge who in a private meeting with juror learns of
unauthorized outside communication "would be well advised" to hold a voir
dire hearing "[u]nless the communication with the juror is patently
innocuous"); United States v. Taylor, 562 F.2d 1345, 1366 (2d Cir.), cert.
denied, 432 U.S. 909 (1977) ("There having been no informed consent to
[private communications between judge and one juror during jury's
deliberations], it was error for the court not to reveal the substance of these
communications to counsel for both sides.").
57

Juror Baker's in camera comments, however, could simply not have alerted the
court to the nature or significance of Baker's concerns. The court met with
approximately 30 jurors, and informed them all that the meetings were solely
for the purpose of discussing hardship excuses. When Baker tried to raise other
matters, the court told him-correctly-that he should address in open court any
matters unrelated to excusal on hardship grounds. Just as it had told counsel it
would do, once the court ascertained that Baker did not require an excusal, it
ended the meeting and encouraged him to speak at voir dire. Baker, moreover,
assured the court that he was satisfied with that solution.

58

Juror Baker's statements at voir dire, in turn, likely satisfied the court that
Baker's concerns had been aired. Baker mentioned his familiarity with the case
from the newspaper; his experience in the National Guard; the fact that his best
friend had died from drug and alcohol abuse; and the fact that he knew several
witnesses. These statements appear to have alleviated any concerns the court
may have had about Baker's in camera comments. Nothing would have led a
trial judge reasonably to suspect anything other than that Baker had disclosed
what was on his mind.

59

Our decision is not inconsistent with Taylor, in which we held that it was error
for the district court not to reveal the substance of its private communications
with a juror. See 562 F.2d at 1366. In Taylor, unlike here, the communications
occurred during the jury's deliberations, a stage of the trial in which private
communications with a juror clearly violate the right to be present. Id. at 1365;
see Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999) ("It is well recognized
that jury deliberations constitute a critical stage of a criminal trial." (internal
quotation marks omitted)). We are unwilling to extend Taylor to the situation at
bar, in which communications between a judge and a juror occurred during the
administrative impanelment process.

60

Here, though the significance of juror Baker's concerns eventually became

60

apparent, the information available to the court at the time of the administrative
impanelment could not have led it to believe that the situation would not be
resolved at voir dire. We cannot employ hindsight in judging whether the
District Court exceeded its allowable discretion. See United States v. Sanchez,
790 F.2d 245, 251 (2d Cir.) ("Our review of the district judge's exercise of
discretion . . . must be based on the relevant circumstances confronting the
judge at the time of his ruling, without the benefit of hindsight."), cert. denied,
479 U.S. 989 (1986). Accordingly, we conclude that the District Court did not
exceed its allowable discretion, given what it knew at the time, in deciding not
to convey to the parties and counsel what Baker had mentioned.
C. Denial of a New Trial

61

We review the denial of a motion for a new trial for abuse of discretion. See
Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir. 1996) (per curiam). "It is, of
course, the rule that a motion for a new trial must be granted if the trial was not
fair to the moving party." Id. (citing Montgomery Ward & Co. v. Duncan, 311
U.S. 243, 251 (1940)). "One touchstone of a fair trial is an impartial trier of
fact-'a jury capable and willing to decide the case solely on the evidence before
it.'" McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)
(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)).
1. New Trial Based on Juror Misconduct

62

In McDonough, 464 U.S. at 556, the Supreme Court held that a party moving
for a new trial based on juror nondisclosure or misstatements must satisfy a
two-part test. First, the party must show that "a juror failed to answer honestly a
material question on voir dire." Id. Second, the party must show that "a correct
response would have provided a valid basis for a challenge for cause." Id. Both
prongs must be met before a new trial may be obtained. See id.

63

In its Opinion and Order denying a new trial, the District Court focused on four
instances of nondisclosure by juror Baker: his questionnaire response that no
one in his family had been convicted of a crime; his failure at voir dire to
disclose his outside contact with a third party; his failure to disclose his
brother's drug use; and his failure to inform the court that Robert Baker is his
brother. In their briefs to this Court, however, the defendants focus exclusively
on Baker's failure to disclose his outside contact. Accordingly, we decline to
address the other instances of nondisclosure. See United States v. Zichettello,
208 F.3d 72, 121 (2d Cir. 2000) ("Ordinarily, failure to include an argument in
the appellate brief waives the argument on appeal."); Norton v. Sam's Club, 145

F.3d 114, 117 (2d Cir.) ("Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on appeal."), cert.
denied, 525 U.S. 1001 (1998).2
64

Focusing solely on Baker's omissions and misstatements regarding his outside

contact, we find it unnecessary to determine whether, under McDonough's
prong one, Baker dishonestly answered questions at voir dire, because we hold
that the District Court did not exceed its allowable discretion in finding that
those omissions and misstatements did not satisfy McDonough's prong two.
McDonough's second prong requires that a party moving for a new trial show
that the correct answer to a question at voir dire would have provided a valid
basis for a challenge for cause. See 464 U.S. at 556. The district court then
must determine if it would have granted the hypothetical challenge. Cf. United
States v. Shaoul, 41 F.3d 811, 816 (2d Cir. 1994) (noting that under second
prong of McDonough, a defendant must have a basis for arguing that the
district court is required to sustain his challenge for cause). We review this
determination for abuse of discretion. Cf. Rivas, 94 F.3d at 807 (denial of new
trial reviewed for abuse of discretion); United States v. Ploof, 464 F.2d 116,
118-19 n.4 (2d Cir.) (district court's rulings on challenges for cause reviewed
for abuse of discretion), cert. denied, 409 U.S. 952 (1972).

65

The District Court found-and we agree-that none of the grounds for a

successful challenge for cause existed here. Challenges for cause are generally
based on actual bias, implied bias, or inferable bias. See United States v.
Torres, 128 F.3d 38, 43 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998).
Actual bias is bias in fact. See id. Implied bias, by contrast, is bias presumed as
a matter of law. See id. at 45. Finally, inferred bias is available when actual or
implied bias does not apply. See id. at 46-47. "Bias may be inferred when a
juror discloses a fact that bespeaks a risk of partiality sufficiently significant to
warrant granting the trial judge discretion to excuse the juror for cause, but not
so great as to make mandatory a presumption of bias." Id. at 47.

66

A district court's determination regarding actual bias is reviewed for abuse of

discretion. See United States v. Morales, 185 F.3d 74, 84 (2d Cir. 1999), cert.
denied, 120 S. Ct. 1282 (2000); United States v. Abrams, 137 F.3d 704, 708
(2d Cir.) (per curiam), cert. denied, 525 U.S. 821 (1998). "The district court,
which 'observ[es] the jury on a day to day basis . . . is in the best position to
sense the atmosphere of the courtroom as no appellate court can on a printed
record.'" Abrams, 137 F.3d at 708 (quoting United States v. Barnes, 604 F.2d
121, 144 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980)). Based on its
evaluation of the testimony at trial and the post-trial evidentiary hearing, the
District Court here found no actual bias. The court credited Baker's testimony

and also noted that the outcome of the trial demonstrated that all the jurors,
including Baker, fairly considered the evidence. The court found that Baker
learned "nothing of substance" about the case from his conversation with a
third party.3 We will not overturn such findings absent clear error, and we see
no such error here. See Torres, 128 F.3d at 44 ("[A] finding of actual bias is
based upon determinations of demeanor and credibility that are peculiarly
within a trial judge's province." (internal quotation marks omitted)); id. ("Given
the special capacity of the trial judge to evaluate actual bias on the part of
prospective jurors, that judge's determination in this regard is accorded great
deference, since an appellate court [cannot] easily second-guess the
conclusions of the decisionmaker who heard and observed the witnesses."
(internal quotation marks omitted)).
67

It is unclear whether our affirmance of the District Court's findings regarding

actual bias ends our inquiry, or whether a post-trial allegation of jury partiality
may alternatively be proven by implied or inferred bias. See Smith v. Phillips,
455 U.S. 209, 215 (1982) ("[T]he remedy for allegations of juror partiality is a
hearing in which the defendant has the opportunity to prove actual bias."). But
see McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring) (noting that in
exceptional circumstances, post-trial hearing could demonstrate inferred bias).
We need not answer that question, however, for we agree with the District
Court that neither implied nor inferred bias was present here.

68

Implied bias does not depend on "determinations of demeanor and credibility,"

but rather is bias presumed as a matter of law. See Torres, 128 F.3d at 45 ("In
contrast to the inquiry for actual bias, which focuses on whether the record at
voir dire supports a finding that the juror was in fact partial, the issue for
implied bias is whether an average person in the position of the juror in
controversy would be prejudiced."). Drawing on Justice O'Connor's admonition
that implied bias should be reserved for "extreme situations," Smith, 455 U.S.
at 222 (O'Connor, J., concurring), we have cautioned that "automatically
presumed bias deals mainly with jurors who are related to the parties or who
were victims of the alleged crime itself." Torres, 128 F.3d at 45. On this basis,
the District Court refused to find implied bias because it found the issues
affecting juror Baker to be insufficiently "drastic." Juror Baker was, after all,
neither related to a party nor a victim of the defendants' crimes. Accordingly, in
light of our reminder to limit findings of implied bias to extreme situations, the
District Court properly refused to find implied bias. See id. at 46 ("[T]he
situations in which a trial judge must find implied bias are strictly limited and
must be truly 'exceptional' . . . .").

69

Finally, a finding of inferred bias is, by definition, within the discretion of the

trial court. As with actual bias, "the judge's determination [of inferred bias]
must be grounded in facts developed at voir dire." Id. at 47. Thus, a district
court's evaluation of the juror's impartiality is accorded deference. Here, the
District Court refused to infer bias based on its assessment of the evidence.
Because we see no error in the court's findings, we decline to overturn that
ruling.
70

In short, we cannot say that the District Court erred in finding no bias that
would have supported a challenge for cause. See Ploof, 464 F.2d at 118-19 n.4
("There are few aspects of a jury trial where we would be less inclined to
disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on
challenges for cause in the empanelling of a jury."). Thus, we affirm the
District Court's denial of defendants' motion for a new trial based on juror
misconduct.

71

2. New Trial Based on Jury Exposure to Extrinsic Evidence

72

The defendants also claim that the extrinsic evidence brought in by juror Baker,
i.e., the information regarding his outside contact and his relationship to Robert
Baker, prejudiced the jury against them.4

73

It is well-settled that any extra-record information of which a juror becomes

aware is presumed prejudicial. See Remmer v. United States, 347 U.S. 227, 229
(1954). A government showing that the information is harmless will overcome
this presumption. See id. "Where an extraneous influence is shown, the court
must apply an objective test, assessing for itself the likelihood that the
influence would affect a typical juror." Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d
Cir.) (per curiam) (internal quotation marks omitted), cert. denied, 513 U.S. 901
(1994). A "trial court's post-verdict determination of extra-record prejudice
must be an objective one," focusing on the information's probable effect on a
"hypothetical average juror." United States v. Calbas, 821 F.2d 887, 896 n.9
(2d Cir. 1987), cert. denied, 485 U.S. 937 (1988); see Bibbins, 21 F.3d at 17.
The court may not inquire into "the degree upon which the extra-record
information was used in deliberations and the impression which jurors actually
had about it." Calbas, 821 F.2d at 897 (citing Fed. R. Evid. 606(b)); see
Bibbins, 21 F.3d at 17 (juror's affidavit as to how extrinsic information affected
the thinking and voting of the jurors or the deliberations of the jury as a whole
was inadmissible). However, in applying the objective test, the court "may
appropriately consider the circumstances surrounding the introduction of [the]
information in making [its] determination." Calbas, 821 F.2d at 896 n.9.

74

In the evidentiary hearing in this case, the District Court asked jurors whether

74

In the evidentiary hearing in this case, the District Court asked jurors whether
the extra-record information impacted their ability to be fair and impartial.
Because this was a post-verdict hearing, that line of questioning was improper.
See Bibbins, 21 F.3d at 17 (under Fed. R. Evid. 606(b), "[e]ven when a juror
attests to receiving information outside the record, the juror may not go on to
testify about the effect of that information on the juror's mental processes or the
jury's deliberations"); United States v. Ianniello, 866 F.2d 540, 544 (2d Cir.
1989) ("Whether the jury relied on improper evidence . . . is not a question to
be asked jurors . . . .").

75

Nonetheless, the District Court also concluded that the extrinsic information
would not have affected a typical juror. After making an "independent
determination" as to this issue, Bibbins, 21 F.3d at 17, we agree. The outside
contact with John Baker presented no information that could have been
improperly used in deliberations. No specific details about the case were
revealed, and there was no indication that the defendants arranged the call.
Similarly, Robert Baker's role in the trial was minimal, and his name arose
during testimony which was provided to prove two counts on which the
defendants were ultimately acquitted. See Calbas, 821 F.2d at 895 (finding no
prejudice in part because the extrinsic information "bore most directly on the
substantive count, upon which [defendant] was acquitted"). Moreover, as the
District Court found, the jury's "complex verdict resulting in convictions on
some counts and acquittals on others" demonstrated its fairness. See United
States v. Aiello, 771 F.2d 621, 631 (2d Cir. 1985) (noting that jury's
impartiality was demonstrated by the nature of its verdict and careful
discrimination in weighing the evidence).

76

Thus, we agree that a "hypothetical average juror" would not have been
influenced by the extrinsic information in this case. Accordingly, the
defendants' motion for a new trial based on jury prejudice resulting from
extraneous information was properly denied.
II. The MDLEA Instruction

77

Count Four of the Indictment charged the defendants with conspiring to violate
the MDLEA between 1989 and 1991 based on their attempts to offload hashish
into Canada from ships in Canadian waters. The evidence produced by the
government at trial demonstrated that in 1989 the defendants orchestrated and
participated in the offload of many tons of hashish from a vessel in the St.
Lawrence River. In 1990, the defendants planned another such offload, but the
shipment did not arrive. In 1991, the defendants planned to offload a 60-ton
shipment of hashish from two vessels in the Gulf of the St. Lawrence. The

effort failed, and barrels of hashish were subsequently discovered floating in

the St. Lawrence River. The defendants were arrested after this failed offload.
78

The MDLEA makes it unlawful for "any person on board a vessel of the United
States, or on board a vessel subject to the jurisdiction of the United States . . . to
knowingly or intentionally . . . distribute . . . a controlled substance." 46 U.S.C.
app. 1903(a). The Act states that "a 'vessel subject to the jurisdiction of the
United States' includes . . . a vessel located in the territorial waters of another
nation, where the nation consents to the enforcement of United States law by
the United States." Id. 1903(c)(1)(E). "Consent . . . may be proved by the
certification of the Secretary of State or the Secretary's designee." Id. 1903(c)
(1)(E).5

79

In this case, the defendants were charged with a conspiracy that ended in late
July 1991. In July 1996 the defendants were indicted for violating the MDLEA.
It is undisputed that the government did not obtain consent from Canada to
enforce United States law until after the return of the Superseding Indictment in
July 1996.

80

The District Court instructed the jury as follows:

81

The government has .introduced evidence of . . . a certification by a designee of

the Secretary of State of the United States. This certification alone is sufficient
evidence from which you may find that the government has proved beyond a
reasonable doubt that the vessels . . . were vessels subject to the jurisdiction of
the United States.

82

The defendants challenge this instruction, asserting that because the

certification of consent was obtained in 1996, it conferred jurisdiction in 1996.
Thus, the certification could not have shown that the vessels were "subject to
the jurisdiction of the United States," 46 U.S.C. app. 1903(a), at the time of
the alleged conspiracy. We review the jury instruction de novo. See United
States v. Miller, 148 F.3d 207, 211 (2d Cir. 1998), cert. denied, 525 U.S. 1072
(1999).

83

We have not previously had occasion to interpret the MDLEA's jurisdictional

provisions. We agree with the District Court, however, that the statute's
jurisdictional element may be satisfied by consent provided any time before
trial. First, the MDLEA requires the consent of foreign nations for purposes of
international comity and diplomatic courtesy, not as a protection for defendants.
See S. REP. NO. 99-530, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. 5986,

6001 ("[O]nly the flag nation of a vessel should have a right to question
whether the Coast Guard has boarded that vessel with the required consent"
because the "international law of jurisdiction is an issue between sovereign
nations."); see also United States v. Devila, 216 F.3d 1009, 1017 (11th Cir.
2000) (per curiam), aff'g United States v. Preciado, No. 96-0534 (S.D. Fla. Jan.
13, 1998) (order denying motion for new trial) ("The [MDLEA] requires the
consent of a vessel's flag nation for jurisdiction to protect the interest of that
flag nation and international comity, not the interest of the individuals aboard
the vessel."); United States v. Rasheed, 802 F. Supp. 312, 321 (D. Haw. 1992)
("[T]he consent requirement of 1903 is a courtesy extended to foreign
governments, not to drug smugglers."). As such, consent given at any time prior
to trial achieves the purpose of 1903(c)(1)(E).
84

Moreover, we are persuaded by the fact that several of our sister circuits have
found that consent under the MDLEA can relate back to activity that occurred
before consent. See, e.g., Devila, 216 F.3d at 1017, aff'g United States v.
Preciado, No. 96-0534 (S.D. Fla. Jan. 13, 1998) (order denying motion for new
trial) ("[W]hile the individuals may challenge jurisdiction over a vessel on the
basis that the flag nation failed to consent before trial, they may not do so on
the basis that the flag nation's consent was obtained after the vessel was
boarded."); United States v. Cardales, 168 F.3d 548, 552 (1st Cir.) (finding
jurisdictional requirement of MDLEA satisfied though consent was provided
after boarding of ship by Coast Guard), cert. denied, 120 S. Ct. 101 (1999);
United States v. Juda, 46 F.3d 961, 966 (9th Cir.) ("[W]hen MDLEA
jurisdiction is premised on consent of the flag nation, such consent relates back
to activity that occurred prior to consent."), cert. denied, 515 U.S. 1169 (1995);
United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994) ("[T]he timing of . . .
consent is irrelevant."). Cf. United States v. Aikins, 923 F.2d 650, 655 (9th Cir.
1990) ("The statute is not applied to the defendants ex post facto; although
Panama gave its consent after they had set to sea, they took the risk of such
consent being given."); United States v. Reeh, 780 F.2d 1541, 1547 (11th Cir.
1986) (noting that consent under predecessor statute, 21 U.S.C. 955a, is valid
if given "before th[e] case came to trial").

85

Indeed, the above cases interpreted 1903(c)(1)(C), an arguably more

restrictive provision which involves ships registered in foreign nations, as
opposed to 1903(c)(1)(E), which involves ships in foreign waters. As the
District Court noted, 46 U.S.C. app. 1903(c)(1)(E), the subsection under
which the government sought to establish jurisdiction here, provides that a
vessel is subject to the jurisdiction of the United States if a foreign nation
"consents" to United States enforcement. In contrast, 1903(c)(1)(C) provides
that a vessel is subject to the jurisdiction of the United States if a foreign nation

"has consented" to United States enforcement. The difference in statutory

language makes the rationale of the above cases all the more persuasive in our
context. The fact that courts have allowed consent to relate back even under
1903(c)(1)(C)-despite its "has consented" language-convinces us that it can
relate back under 1903(c)(1)(E).
86

Although consent here was given five years after the fact-as opposed to weeks
or months-there is no clear rationale for drawing the line at any point prior to
the beginning of trial. If consent after the fact is permissible, then it is as
logical to allow it years after securing of the vessel as it is days after.

87

Accordingly, we hold that the District Court's instruction-that consent provided

even after prosecution is initiated may establish jurisdiction under 1903(c)(1)
(E)-was not erroneous.
III. Sentencing

88

Relying on the testimony at trial and at sentencing, the District Court

determined that the vast majority of the hashish on board the vessels in 1989
and 1991 was destined for Canada and had been the subject of Canadian
prosecution. The court thus concluded that only 2% of the hashish-the amount
that entered the United States-should be counted as part of the defendants'
relevant conduct pursuant to U.S.S.G. 1B1.3. This resulted in a U.S.S.G. base
offense level of 36. The court added three levels to the defendants' base offense
levels for their aggravating roles under U.S.S.G. 3B1.1(b). The resulting total
offense level for each defendant was 39.

89

Because Greer's criminal history category was II, his U.S.S.G. range was 292 to
365 months; Hutchins's criminal history category was I, and his U.S.S.G. range
was therefore 262 to 327 months. The District Court sentenced Greer to 324
months' and Hutchins to 276 months' imprisonment. Both defendants were also
fined $500,000.
A. The Defendants' Sentencing Claims
1. Failure to State Reasons

90

Greer and Hutchins request a remand for resentencing because the District
Court failed to state its reasons for imposing sentences of 324 months' and 276
months' imprisonment, respectively.

91

Whether we may review a district court's failure to state its reasons for
imposing a particular sentence depends on whether the court imposed a
sentence within an applicable Sentencing Guideline range that exceeds 24
months or whether it departed downward and imposed a sentence outside the
applicable range. Title 18, section 3553(c)(1) of the United States Code
requires a district court to explain its reasons for imposing a sentence at a
particular point within a Guidelines range if the range exceeds 24 months. See
18 U.S.C. 3553(c)(1); see also United States v. Prince, 110 F.3d 921, 927 (2d
Cir.), cert. denied, 522 U.S. 872 (1997). Title 18, section 3553(c)(2) similarly
requires a district court to state its reasons for imposing a sentence outside the
range established by the Guidelines-that is, for departing.6 See 18 U.S.C.
3553(c)(2). However, in United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.),
cert. denied, 525 U.S. 1048 (1998), we held that a court's failure to explain the
extent of a downward departure-even when the departure is to a sentencing
range exceeding 24 months, see id. at 450 n.1-is unreviewable on appeal by a
defendant. We noted that 18 U.S.C. 3742(a) does not allow courts of appeals
to review a district court's refusal to grant a downward departure or the extent
of any downward departure that is granted. See id. As such, a rule that allows
review of the failure to explain the extent of a departure would be "anomalous."
Id. The end result is that we may only review the District Court's failure to state
its reasons for the defendants' sentences if those sentences were not the result of
downward departures.

92

Unfortunately, however, the District Court's sentencing remarks are

ambiguous. In its "Order: Guidelines Application Issues," the court wrote that,
though it had enhanced the defendants' base offense levels by two points for use
of an aircraft in importing or exporting a controlled substance under U.S.S.G.
2D1.1(b)(2)(A), it was departing downward two levels-and thus canceling out
the enhancement-because the use of the plane was minimal. Yet in its
"Amended Judgment in a Criminal Case," the court stated that the "airplane
enhancement will not be applied," and in its "Statement of Reasons for
Sentence," the court reiterated that "the airplane enhancement will not be
applied." In its oral decision at the sentencing hearing, the court did not
mention any airplane enhancement and subsequent departure. In addition, in the
"Statement of Reasons" section of the Judgment, the court checked the box for
the statement, "The sentence is within the guidelines range, that range does not
exceed 24 months, and the court finds no reason to depart from the sentence
called for by the application of the guidelines." Accordingly, the court left
blank the next area, which called for reasons for the imposition of a sentence in
a range that exceeds 24 months.

93

Because we find the District Court's remarks ambiguous, we remand for

clarification as to whether the court in fact sentenced the defendants within

their applicable ranges or downwardly departed to arrive at their sentences. See
United States v. Thorpe, 191 F.3d 339, 342-44 (2d Cir. 1999). If the District
Court did not depart downward, it should provide a statement of reasons for
imposing the defendants' sentences at a particular point within their applicable
ranges, which exceed 24 months, as required by 3553(c) (1).7 See United
States v. Zackson, 6 F.3d 911, 924 (2d Cir. 1993) (vacating and remanding for
statement of reasons); United States v. Chartier, 933 F.2d 111, 117 (2d Cir.
1991) (vacating the sentence and remanding because, though record contained
some discussion of the judge's reasoning, district court did not "fully comply
with the requirement" of 3553(c)(1)).
2. Hutchins's Fine
94

Hutchins argues that his $500,000 fine was improper for two reasons: first,
because he did not receive adequate notice that material in the pre-sentence
report ("PSR") would be taken into account in determining the fine; and second,
because the evidence at sentencing did not support the finding that Hutchins
had the ability to pay the fine.

95

Hutchins's claims are without merit. First, contrary to Hutchins's assertion,

there is no provision in Federal Rule of Criminal Procedure 32 that requires
notice that PSR information will be used in imposing a fine. See Fed. R. Crim.
P. 32. Rule 32 does require that a defendant be given an opportunity to contest
the factual and legal determinations in a PSR. See Fed. R. Crim. P. 32(b)(6),
(c). This rule, however, is designed "to ensure that the PSR is completely
accurate in every material respect, thereby protecting a defendant from being
sentenced on the basis of 'materially untrue' statements or 'misinformation.'"
United States v. Reiss, 186 F.3d 149, 157 (2d Cir. 1999). The rule does not
require notice of how PSR information will be used. See United States v.
Romano, 825 F.2d 725, 730 (2d Cir. 1987) (Rule 32 and due process require no
more than notice of all relevant information that could be used in determining a
defendant's sentence and opportunity to object); cf. United States v. Pimentel,
932 F.2d 1029, 1032 (2d Cir. 1991) (due process requires "notice of all the
relevant information that could be used against" a defendant, not how that
information will be used).

96

Here, the PSR was furnished to Hutchins and Hutchins was provided an
opportunity to state his objections to the report's contents. The PSR specifically
discussed the profits earned by Hutchins. Thus, Hutchins was provided
adequate notice under Rule 32.

97

Second, the District Court considered the evidence and found that while the
defendants were on bail and during trial, they made approximately $1.7 million
in profits from continued drug distribution. These findings are reviewable only
for clear error. See United States v. Sellers, 42 F.3d 116, 118, 120 (2d Cir.
1994), cert. denied, 516 U.S. 826 (1995). We find no such error and, given
those findings, we conclude that a $500,000 fine is reasonable.8
B. The Government's Cross-Appeal

98

The government appeals from the defendants' sentences based on three

grounds. First, the government claims that the District Court erred in not
including in the defendants' relevant conduct a quantity of drugs that was part
of the defendants' offense but that was not intended for distribution in the
United States and had already been the subject of foreign prosecution. Second,
the government argues that the court should have found that the defendants
were leaders or organizers rather than merely managers or supervisors of
criminal activity. Finally, the government claims that the defendants directed
other conspirators to lie in the grand jury and thus a two-level enhancement for
obstruction of justice should have been applied. We consider each of these
arguments in turn.
1. Drug Quantity Calculation

99

The government challenges the District Court's exclusion of 98% of the hashish
on the ships when it determined the defendants' relevant conduct under
U.S.S.G. 1B1.3 for purposes of calculating a base offense level. The court
found that the vast majority of the drugs were intended for distribution in
Canada, and as such constituted "foreign drugs." The court also noted that the
defendants had already been prosecuted and had served time in Canada for the
importation of these drugs.

100 Reviewing the District Court's application of the Sentencing Guidelines de

novo, see United States v. Hernandez-Santiago, 92 F.3d 97, 100 (2d Cir. 1996),
we hold that the court misapplied 1B1.3. Section 1B1.3 provides that all acts
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant and that occurred during the commission of
the offense shall be factored into the determination of the base offense level.
See U.S.S.G. Manual 1B1.3(a)(1)(A) (1998). Contrary to the District Court's
suggestion, nothing in the U.S.S.G. limits their application to "activity
undertaken against the United States." Thus, the District Court erred in failing
to include the "foreign drugs" in its determination of the defendants' relevant

conduct pursuant to 1B1.3.

This holding does not conflict with United States v. Azeem, 946 F.2d 13 (2d
101 Cir. 1991), in which we held that foreign crimes, that is, crimes not committed
against the United States, should not be considered relevant conduct under
1B1.3. In Azeem, the district court included as part of the defendant's relevant
conduct drugs transported from Pakistan to Cairo in a separate transaction. See
id. at 16. Because that transaction "was not a crime against the United States,"
we held that the drugs should not have counted toward the defendant's base
offense level. Id. By contrast, the crimes in this case are not foreign crimes; the
MDLEA is a United States criminal statute that specifically covers conduct
outside the United States.9 See United States v. Juda, 46 F.3d 961, 966 (9th
Cir.) ("Nothing in the language of the [MDLEA] limits its application to
defendants who possess drugs intended for distribution in the United States."),
cert. denied, 515 U.S. 1169 (1995).
102 The defendants argue that even if the District Court erred in calculating their
relevant conduct, no remand is necessary because the court made an
"alternative ruling granting a downward departure" based on the foreign nature
of the drugs and the Canadian prosecution. While in some cases it may be
within a district court's discretion to depart downward due to successive
prosecutions, see Koon v. United States, 518 U.S. 81, 112 (1996), we need not
decide whether such a departure was appropriate here because our reading of
the record leads us to conclude that the District Court did not depart downward.
Rather, the court decided that the "foreign" drugs were not part of the
defendants' relevant conduct under 1B1.3 of the U.S.S.G.
103 At the sentencing hearing, the court stated:
104 I didn't want to double penalize Mr. Greer. Theoretically he could have been
sentenced under [a base offense level of] 38 and essentially say that he should
get credit [for time already served]. But I didn't think that was honest . . . with
the intention and purpose of the statute, and honest in regard to . . . the purpose
of the guidelines. This is to penalize American conduct, and if there was a way
to delineate American conduct, that's the way it's done. And that's the way I did
it, and that's why [the base offense level] ended up at 36.
105 The court then indicated several times that because it considered the
defendants' culpability in its determination of relevant conduct, a downward
departure for successive prosecutions was unwarranted. Moreover, in its
"Order: Guidelines Application Issues," the court reiterated that "the fact that

these defendants have been prosecuted, convicted and incarcerated for these
drugs, which for the most part never reached United States soil, is crucial to
this Court's determination of the quantities of drugs for which they should be
sentenced here." The court stated that "foreign drugs in all fairness should not
be added to the total drug quantity."
106 It is thus clear that, rather than departing downward, the court factored into
relevant conduct under 1B1.3 the fact that the drugs were destined for a
foreign nation and were the subject of foreign prosecution. Because this is a
misapplication of the Guidelines, we vacate the sentences and remand for
resentencing. We express no opinion as to whether the defendants' sentences
are adequate in light of their culpability. We only hold that excluding from
relevant conduct drugs that were part of the offense is not permitted under the
U.S.S.G.
2. Role in the Offense
107 The District Court found that Greer and Hutchins were managers or supervisors
of criminal activity rather than leaders or organizers, and, accordingly,
increased their base offense levels by three rather than four points for their
aggravating roles under U.S.S.G. 3B1.1(b). The court found that the criminal
organization at issue included the Dutch and Canadian groups, and, in the
context of this broader enterprise, Greer and Hutchins were simply middlemen.
We see no error in this conclusion.
108 "The determination of a defendant's role in the offense is to be made on the
basis of all conduct within the scope of 1B1.3 (Relevant Conduct), i.e., all
conduct included under 1B1.3(a)(1)-(4), and not solely on the basis of
elements and acts cited in the count of conviction." U.S.S.G. Manual Ch. 3, Pt.
B, intro. comment (1998); see United States v. Perdomo, 927 F.2d 111, 116 (2d
Cir. 1991). "All conduct" for the purposes of "quantity grouping" cases, such as
drug cases, means "'all acts and omissions that were part of the same course of
conduct or common scheme or plan as the offense of conviction.'" Id. at 117
(quoting U.S.S.G. Manual 1B1.3(a) and (a)(2) (1998)). A district court's
determination of what constitutes the "same course of conduct" under 1B1.3
is subject to clearly erroneous review. See id.; United States v. Shepardson, 196
F.3d 306, 315 (2d Cir. 1999), cert. denied, 120 S. Ct. 1258 (2000).
109 Here, the course of conduct could reasonably have included the Dutch and
Canadian organizations' activities. After considering such factors as decision
making authority, claim to proceeds, degree of participation in planning and

organization, scope of the illegal activity, and degree of control and authority
exercised over others, the District Court found that "at trial and at sentencing it
became clear that the real leaders or organizers of this conspiracy reside in
Holland and Canada. The roles that Greer and Hutchins played in the overall
drug conspiracy were those of couriers, offloaders or mid-level distributors."
Such findings do not appear to be clearly erroneous. See United States v.
Napoli, 179 F.3d 1, 15 (2d Cir. 1999) (a "sentencing court's findings as to the
defendant's role in the offense will be overturned only if they are clearly
erroneous" (internal quotation marks omitted)), cert. denied, 120 S. Ct. 1176
(2000).
110 In United States v. Marino, 29 F.3d 76, 78 (2d Cir. 1994), we refused to
consider the defendant's conduct in the context of a much larger enterprise
because the enterprise's activities were not included in the defendant's relevant
conduct to raise her offense level. Here, by contrast, in light of our holding that
the entire quantity of drugs on the ships must be considered as part of the
defendants' relevant conduct, it is reasonable to conclude that the defendants
were not leaders or organizers with regard to that conduct. See id. ("[I]f [the
defendant's] offense level is raised, either in the selection of a base level or by
an upward adjustment, . . . a mitigating role reduction might be warranted if the
defendant's role in the conduct supporting the higher level is minor."); see also
United States v. Rodriguez De Varon, 175 F.3d 930, 941 (11th Cir.) ("[T]he
district court must assess whether the defendant is a minor or minimal
participant in relation to the relevant conduct attributed to the defendant in
calculating her base offense level."), cert. denied, 120 S. Ct. 424 (1999).
111 Thus, the District Court did not err in imposing a three- rather than four-point
role-in-the-offense enhancement.
3. Obstruction of Justice
112 While jailed in the United States and Canada with their co-conspirators, the
defendants held discussions about what should be said in the grand jury when
the co-conspirators were called to testify. The District Court analyzed the coconspirators' trial testimony about these discussions, and found that it could not
conclude that the defendants directed anyone to lie or obstruct justice. Rather,
the court determined, it is plausible that the discussions were merely
speculative, and the defendants simply suggested that no one need volunteer
extra information. Thus, concluding that the defendants' statements to their coconspirators were simply part of a joint defense strategy rather than directions
to lie, the court refused to enhance the defendants' sentences pursuant to
U.S.S.G. 3C1.1. The government appeals from this determination.

113 The government asserts that the court erroneously evaluated the defendants'
statements in the "light most favorable" to the defendants. The U.S.S.G.
previously instructed courts to view statements "in a light most favorable" to
the defendant when deciding whether to apply an obstruction of justice
enhancement. See, e.g., U.S.S.G. Manual 3C1.1 Application Note 1 (1995).
However, an amendment to the U.S.S.G., which became applicable before
sentencing in this case,removed the "most favorable" language and advised
courts simply to "be cognizant that inaccurate testimony or statements
sometimes may result from confusion, mistake, or faulty memory and, thus, not
all inaccurate testimony or statements necessarily reflect a willful attempt to
obstruct justice." U.S.S.G. Manual App. C, amend. 566 (effective Nov. 1,
1997).
114 The government contends that the District Court committed legal error by
applying the old standard. We agree. The court stated several times that it was
construing the statements in the light most favorable to the defendants. In
addition, the court relied on a case, United States v. Lew, 980 F.2d 855, 857 (2d
Cir. 1992), in which we applied the old standard in reversing an obstruction
finding. We express no opinion as to whether an obstruction of justice
enhancement pursuant to U.S.S.G. 3C1.1 is appropriate here; however, we
remand to the District Court so that it may evaluate the statements under the
current standard.
CONCLUSION
115 For the foregoing reasons, we affirm the convictions and the denial of a new
trial. However, we vacate the sentences and remand: (1) for clarification of the
record as to the manner in which the District Court arrived at the defendants'
sentences, and, if required, a statement of reasons for the sentences imposed;
and (2) for resentencing based on the District Court's misapplication of the
Sentencing Guidelines's "relevant conduct" and "obstruction of justice"
provisions.

Notes:
1

It is unclear whether the contact was telephonic or in person. Baker first stated
that he was "contacted," then later commented, "We kind of met, like secretly.
He didn't want to meet in a public place."

It is true that in his brief Greer mentions Baker's omissions about his
relationship with his brother in discussing prong one of the McDonough test.

This is only in an attempt to bolster his claim that Baker lacked credibility,
however, and it is not until his reply brief that Greer even suggests that Baker's
omissions regarding his brother would have provided a valid basis for a
challenge for cause. Thus, we find that the defendants waived the argument that
Baker's omissions regarding his brother satisfy the second prong of
McDonough. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)
(argument raised for first time in reply brief is waived). Because a party
moving for a new trial based on juror misconduct must satisfy both prongs of
McDonough, we find it unnecessary to reach the issue of Baker's omissions
about his relationship with his brother.
3

The District Court's determination that it would not have excused Baker for
cause as a result of his contact with a third party is supported by the fact that no
challenge for cause was made-let alone sustained-with regard to the other
venire person who was asked by a third party to lend a "sympathetic ear."

We do not consider the alleged extrinsic information regarding Greer's drug

transactions with Robert Baker. The District Court found that the one juror who
testified about such remarks by John Baker was not reliable. Because this was a
finding regarding credibility, we accord great deference to the trial court. See
United States v. Weissman, 195 F.3d 96, 99 (2d Cir. 1999).

In 1996, Congress amended the statute to provide: "Jurisdiction of the United

States with respect to vessels subject to this chapter is not an element of any
offense." 46 U.S.C. 1903(f) (1996), as amended by Pub. L. No. 104-324, tit.
XI, 1138, 110 Stat. 3988. Because the 1991 version of the statute applies to
the defendants, this statutory amendment has no bearing on this case.

18 U.S.C. 3553(c) provides in pertinent part:

The court, at the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentence- (1) is of the kind, and
within the range, [established by the Sentencing Guidelines] and that range
exceeds 24 months, the reason for imposing a sentence at a particular point
within the range; or (2) is not of the kind, or is outside the range, [established
by the Sentencing Guidelines], the specific reason for the imposition of a
sentence different from that described.
18 U.S.C. 3553(c)(1), (2).

We express no opinion as to whether imposition of the airplane enhancement

followed by an immediate downward departure would be appropriate.

Hutchins's fine range under the Guidelines was $25,000 to $4 million plus the

costs of confinement and supervision.

9

The District Court itself acknowledged that Azeem "does not control the
outcome here" because the "offloads in this case, unlike the situation in Azeem,
did not involve a distinctly foreign crime."